DIVISION OF OCCUPATIONAL SAFETY AND HEALTH
POLICY AND PROCEDURES MANUAL
Issue Date: 5/1/96
AUTHORITY: California Labor Code Sec. 6400, 6401, 6401.7 and 6402 through 6404.
POLICY: It is the policy of the Division of Occupational Safety and Health to respond appropriately when an investigation or inspection reveals that a dual-employer situation exists. This shall be accomplished by gathering sufficient information to determine, in a manner that is fair, consistent with previous decisions of the Occupational Safety and Health Appeals Board, and protective of employee safety, which employer is to be cited for violative conditions found at the worksite. Dual-employer situations should not be confused with multi-employer worksite situations, which usually involve construction worksites at which employees of two or more employers are present concurrently or in succession.
TYPES OF DUAL-EMPLOYER SITUATIONS
A dual-employer issue exists whenever two or more employers are potentially liable for a violation to which an employee has been exposed. The most common dual- employer situation is one involving a temporary help agency or an employee leasing company which has provided an employee to work at a worksite under the supervision and control of another company.
The company supplying the employee is referred to as the primaryemployer and the company supervising the employee at the worksite is referred to as the secondary employer.
The primary employer is the "contractual" employer of the worker. That is, the primary employer contracts with the employee to perform work in exchange for wages or a salary and issues the employee's pay check, secures workers' compensation insurance for the employee, and usually retains hiring and firing authority.
An employer attains secondary employer status by virtue of supervision and control. In opinions of the Occupational Safety and Health Appeals Board, the secondary employer is also referred to as a "special employer." This term implies that supervision as an indicator of the employment relationship is a mandate that arises out of the California Occupational Safety and Health Act, not out of traditional contractual concepts.
Secondary Employer Liability
Determining secondary employer liability is usually a simple matter and depends on whether the secondary employer exercised supervision and control over the employee exposed to the violative condition. The fact that the primary employer may also be liable for the violation will usually not affect this determination.
Primary Employer Liability
The rules regarding primary employer liability are general in nature and come from a series of Occupational Safety and Health Appeals Board decisions which have recognized that, while a primary employer must take all reasonable steps necessary to protect the health and safety of its employees (See Labor Code §6403), there are limits to what can reasonably be expected of the primary employer when its employee is working under the supervision of the secondary employer at a worksite which is exclusively under the secondary employer's control.
The Appeals Board's general rule is that the primary employer must always take steps to assure that the employee: (1) is covered by an effective Injury and Illness Prevention (IIP) Program; (2) receives all required general and specific training; and (3) is provided with all required personal protective equipment.
If the primary employer meets these requirements, and has not exercised supervision and control over the employee's work activity at the secondary worksite, then the primary employer will generally not be held liable for violations to which its employee is exposed at the secondary worksite.
When a primary employer fails to comply with the above listed three requirements, it is citable for those violations. In addition, when the primary employer fails to comply with IIP Program coverage and training requirements, the primary employer may also be liable for other types of violations to which its employee is exposed at the secondary worksite.
These are general rules from Appeals Board cases that are designed to deal with situations in which the secondary employer has exclusive control over the worksite and the primary employer has not arranged, in a responsible way, for its employee to be protected at the secondary worksite as required by Title 8.
Thus, the Appeals Board cases do not address many of the complexities that Division compliance personnel are currently encountering and will continue to encounter in this area, e.g., how to apply these rules when the primary employer has some degree of influence over hazards at the secondary worksite, or when the primary employer responsibly arranges for a secondary employer to provide training and personal protective equipment.
The central issues to keep in mind when evaluating situations that do not exactly fit the Appeals Board model are:
the degree of the secondary employer's autonomy from the primary employer (i.e., the extent to which the primary employer can influence conditions at the secondary site); and
the reasonableness of the steps taken by the primary employer to assure the safety of its employees at the secondary site, given the extent to which the primary employer can influence conditions at the secondary worksite.
A. IS THERE A DUAL EMPLOYER SITUATION?
Is there evidence that an employer, other than the employer who issues the employee's pay check, was supervising--or was supposed to be supervising--the employee's work?
B. WHAT TYPE OF DUAL EMPLOYER SITUATION EXISTS?
Compliance personnel shall obtain evidence to document answers in the inspection file to the following issues:
Did the primary employer provide IIP Program coverage, all required non-IIP Program training, and PPE for the exposed employee? If not, did the primary employer take reasonable steps to ensure that these would be provided to the employee?
NOTE: See Sections C.2.a.(1)(a) through (d) below for further discussion of reasonable steps a primary employer can take to secure safety for its employees through the secondary employer.
If not exempt from 8 CCR §14301, did the secondary employer enter on its Log 300 all recordable injuries and illnesses of employees supervised by the secondary employer, including employees of the primary employer?
NOTE: The primary employer is not required to log injuries and illnesses occurring at the secondary worksite unless the primary employer on a day-to-day basis. Any injury or illness should be recorded on the Log 300 only once, either by the secondary employer or by the primary employer, depending on which employer is supervising the employee on a day-to-day basis.
Other issues involving dual-employer situations may occasionally arise which require consideration and investigation. For example, the investigation may lead to the conclusion that the primary employer's employee was exposed to a violation at the secondary worksite due, at least in part, to the primary employer's failure to implement reasonable preventive measures. When confronted by such a situation, compliance personnel shall seek advice from the Legal Unit on how to proceed.
C. CITATION POLICY (See Attachment for Flowchart)
The decision about whether to issue a citation always begins with the determination as to whether an employee was exposed to a violative condition. The secondary employer shall be cited for each violation to which the employee was exposed at the site controlled by the secondary employer. This determination shall be independent of whether it is determined that the primary employer is also liable for the violation.
A primary employer is not citable if there is no employee exposure. In other words, if the primary employer did not attempt to ensure that its employee would be provided a work environment in compliance with Title 8, but the secondary employer still managed to provide one, the primary employer is not citable for a violation. In this case, an information memorandum to the primary employer would be appropriate. If there has been employee exposure to a violation at the secondary site, the decision as to whether and how to cite shall be made as follows:
If the answers to questions in Section B.1.a. through d. are all "no," then compliance personnel shall determine liability for violations as follows:
The primary employer shall generally be cited for any failure to comply with 8 CCR §3203, or other regulations requiring the provision of PPE or training. However, do not cite if the primary employer was unaware of the violations and took reasonable action to ensure that IIP Program coverage and all required PPE and training would be provided by the secondary employer.
Reasonable action consists of taking a series of steps such as the following, or taking other steps which, as a whole, result in a reasonable degree of certainty that IIP Program coverage, PPE, and training will be provided to the employee as required:
NOTE: A documented on-site inspection by the primary employer which includes review of the secondary employer's IIP Program is an acceptable substitute for maintaining a copy of the secondary employer's IIP Program on file.
The primary employer shall generally be cited for other types of Title 8 violations only if the primary employer is also citable under C.2.a.(1). However, do not cite for other violations of Title 8 if they are unrelated to the violations cited under C.2.a.(1).
EXAMPLE: An employee was not trained for respirator use, but was fully trained for forklift operation. The primary employer is potentially citable for violations related to respirator use, but not for violations related to use of a forklift.
If the answer to any of the questions in Section B.1.a. through d. is "yes," then compliance personnel shall preliminarily evaluate the primary employer under C.2.a. above.
If the preliminary evaluation indicates that the primary employer is liable for the violation, no further evaluation is necessary. However, if the preliminary evaluation indicates that the primary employer is not liable for the violation, further evaluation shall proceed as follows:
In general, if the primary employer knew of the violative condition, the primary employer shall be cited for the violation. However, the primary employer should not be cited if:
NOTE: If an imminent hazard is present, the primary employer's reasonable course of action is to inform the employee and prohibit the employee from going to work at the secondary site.
If the primary employer had involvement with the secondary site, e.g.,
then the primary employer's liability shall be determined on a case-by-case basis by evaluating the reasonableness of the primary employer's efforts to ensure the safety of the work. This determination should take into account the information available to the primary employer, the primary employer's degree of control over the work environment, and any other relevant facts. The District Manager shall contact the Legal Unit before making this determination.
Attachment -- Primary Employer Liability Flowchart